The Akron Legal News

Inmate who broke parole by committing federal crimes loses appeal for release

ANNIE YAMSON
Special to the Legal News
Published: March 22, 2017

In a unanimous per curiam opinion issued last week, the Supreme Court of Ohio ruled that a London Correctional Institution inmate failed to show that he was entitled to immediate release.

The decision affirmed the judgment of the 12th District Court of Appeals which denied a petition for a writ of habeas corpus and a writ of mandamus filed by inmate Stacey Marsh.

"That court correctly held that Marsh is not entitled to immediate release and thus is ineligible for habeas corpus relief," the high court wrote. "The court of appeals also correctly determined that Marsh is not entitled to a writ of mandamus to compel the Adult Parole Authority to grant him a new parole-revocation hearing with court-appointed counsel."

Marsh, who has been serving the remainder of an indeterminate sentence since the APA revoked his parole in 2014, was first sentenced to prison in Madison County in 1985.

Since then, he has pleaded guilty to other crimes and in December 1985 was sentenced to a prison term of four to 15 years in a Franklin County case.

In 1989, Marsh was granted parole but two years later he was arrested in West Virginia on federal drug and weapons offenses.

He was convicted on all counts and ordered to serve a 324 to 405 month sentence in federal prison.

According to court documents, Marsh was declared a parole violator in 1992 as a result of his federal convictions.

The APA issued a warrant and a detainer for his return to its custody upon the completion of his federal sentence.

"Beginning in June 2001 and continuing until November 2011, Marsh sent letters to various employees of the APA requesting that they lift the detainer, 'recognize the judgment in (the Franklin County robbery) case ... as being satisfied and complete' based on the time he was incarcerated for his federal convictions, and hold a parole-revocation hearing via videoconference," case summary states.

Marsh was returned to the custody of the APA after completing his federal sentence on August 15, 2014 and the APA provided him with written notification of a parole violation hearing.

At the hearing, Marsh admitted that his federal convictions were a violation of his release conditions and presented mitigating evidence.

After considering the record as a whole, including Marsh's admissions and mitigation, the APA revoked his parole and imposed a 48-month sanction.

Marsh will become eligible for parole consideration again in August 2018. His request for reconsideration of the APA's decision was denied in December 2014.

In his petition for a writ of habeas corpus, Marsh requested an order compelling the APA and Warden Terry Tibbals to immediately release him under the same terms and conditions of his original parole.

He also requested an order compelling the APA to credit his time served from 2001 to 2011 and grant him a new hearing with the appointment of counsel.

"Marsh argues that the APA was obligated to hold a revocation hearing as soon as the federal prison agreed to make him available for the hearing via videoconferencing technology," the high court wrote. "But irrespective of Marsh's request that the APA hold a revocation hearing by videoconference, the APA was under no duty to do so during Marsh's federal incarceration."

The high court held that, because Marsh was serving a sentence for federal convictions while on parole from his Ohio sentence, he was not entitled to a revocation hearing until the APA took custody of him after he completed his federal sentence.

"Marsh received a timely revocation hearing one month after being released from federal custody to the custody of the APA," the Supreme Court held. "Moreover, the APA revoked Marsh's parole after he admitted to the parole violations and after considering his mitigation, and imposed a 48-month sanction, making him not eligible for parole consideration again until 2018.

"Accordingly, Marsh has not served his maximum sentence and has not shown that he is being held unlawfully."

The high court concluded that the court of appeals correctly denied Marsh's request for a writ of habeas corpus.

It also ruled that he was not entitled to a new hearing after finding that Marsh was given the opportunity to present mitigating evidence and that he admitted to all charged parole violations.

Court documents state that Marsh's mitigation consisted of his personal history and claims that his criminal conduct was due to childhood trauma, that his federal sentence was disproportionate to his federal crimes, and that he was "no longer the same person" that he was when he committed his original crimes in Ohio decades earlier.

"The APA considered Marsh's mitigating evidence before revoking his parole; Marsh simply did not make a 'colorable claim' of substantial, complex, or difficult mitigation factors requiring counsel," the high court wrote. "The court of appeals correctly granted summary judgment in favor of Tibbals and the APA."

The case is cited State ex rel. Marsh v. Tibbals, Slip Opinion No. 2017-Ohio-829.

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